COMMONWEALTH OF AUSTRALIA (ABN: 122 104 616)

Monday, February 23, 2015

Police Ignorance of the Law – Should They Have More Legal Training?

Police are supposed to uphold and maintain the law, but a recent court
case shows that in some instances, officers do not even understand the
charges that they are pressing against members of the public.

The misapplication of criminal charges can lead to people being arrested
and detained for no legal reason, as well as potentially having to go
through the distress of court proceedings unnecessarily.

The woman was arrested at a bus interchange in May 2013, capsicum
sprayed, and charged with two counts of obstructing or resisting a
public official, and another charge of breaching the peace.

The woman was alleged to have kicked a bus stop sign and shouted loudly,
and when police told her to stop she allegedly walked away and began
hitting a glass window.

Police then tried to arrest her, fearing that if left to go home alone
she would breach the peace. When the woman resisted arrest, police used
capsicum spray to restrain her.
The defence argument

The defendant’s lawyer in court earlier this month that the woman had
been wrongly charged with breaching the peace as her behaviour did not
fit into the definition required, and therefore not only was the charge
against her inappropriate, police attempts to arrest her were also
illegal, which meant that she could not reasonably be convicted of
resisting arrest.

Although it was accepted that the officers had acted in good faith and
hadn’t used any unnecessary force when arresting the woman, the charges
were dismissed by the magistrate, who also suggested to the prosecution
that further police training might be necessary.

The woman reported feeling scared and shaken after the incident. She is
said to be considering an official complaint to ACT Policing, but is
unable to start civil proceedings as there is a six-month time limit.

The lack of an official complaint also means that there has been no investigation undertaken by police.
What is the legal definition of breaching the peace in NSW?

As the term “breach of the peace” is not defined in LEPRA, this can lead
to a range of different interpretations and misunderstandings.

It is generally understood that for a breach of the peace to occur, there need to be other members of the public present.

A breach of the peace can encompass violent behaviour, loud noise and other disruptive activities.

In the case of the woman in Canberra, it was successfully argued that as
nobody else was around, her behaviour couldn’t be classed as a breach
of the peace.

Wrongful arrests in NSW

ACT police are not the only ones who get things wrong.

Over the last few years there have been a number of well-publicised
cases of the NSW Police Force making wrongful arrests, or overstepping
their powers.

In one case last year, a NSW woman sued the police for wrongful arrest
after she was arrested in 2010 and charged with conspiracy to murder.
The charges against her were later dropped, but the woman had already
been humiliated and intimidated in custody, and she asserted that
threats had been made against her.

The matter was settled in the NSW District Court in October last year for an undisclosed amount.

On a wider scale, a class action was undertaken in NSW last year against the police service for the wrongful arrest and imprisonment of young people.

The consequences of police misinterpreting or misunderstanding the law
can be serious, and can lead to distress and humiliation for members of
the public, not to mention the stress, anxiety, inconvenience and
expense of having to go through court proceedings.